Kalu @ Kaluram And Others vs State Of Madhya Pradesh

@JUDGEMENTTAG- JUDGEMENT

Prem Narayan Singh, J

This criminal appeal is preferred under section 374 of Cr.P.C. by the appellants being aggrieved by the judgment dated 08.12.2023, passed by learned Special Judge, NDPS Act, District Barwani, in SC-NDPS No. 33/2021, whereby the appellants have been convicted for the offence punishable under Section 8(C)/21(b)(ii)(b) of NDPS Act and sentenced to undergo 04 years RI with fine of Rs.10,000/- each and default stipulation.

3 . As per the case of prosecution on 09.09.2021, on a discreet information was received by the police that Kalu S/o Mohan Kumawat (appellant No. 1) is coming with his partner Sugan on a Discover motorcycle bearing registration No.MP-09-MB-5658 from Dhar towards Talun with huge quantity of illegal Ganja and on being searched recovered 02 kilo and 200 grams of ganja from possession of the appellant Nos. 1 and 2 and 1 kilo and 500 grams of ganja was recovered from the possession of appellant No. 3. Thereafter, police registered crime and arrested the accused persons. Thereafter, after following the due procedure of law, FIR was registered. Thereafter, investigation was conducted and charge sheet was filed after which charges were framed against the appellants but they denied the same and expressed their willingness to face the trial, the appellants were found guilty for the offence under Section 8(C)/21(b)(ii)(b) of the NDPS Act, 1985.

The appellants have preferred this criminal appeals on several grounds but during the course of arguments, learned counsels for the appellants did not press these appeals on merits and not assail the finding of conviction part of judgment. They confine their arguments on the point of sentence. Counsels for the appellants assure that the appellants will not involve in such criminal activities in future. They also submitted that the appellant No.1 Kalu @ Kaluram and appellant No. 2 Sugan have already suffered approximately five months of their jail incarceration and appellant No. 3 Kalu @ Kalusingh has undergone approximately four months only out of his jail incarceration. They further submitted that they are having regard to all circumstances which resulted in appellants' conviction. Further keeping in view the fact that the appellants were facing the trial before the concerned Court for more than 03 years, therefore, they prayed that the appeal be partly allowed and the sentence awarded to the appellant be reduced to the period already undergone.

In support of their contention, counsels for the appellants have placed reliance over the judgment passed in CRA No.7063/2022 (Mukesh Kumar Jatav Vs. The State of Madhya Pradesh) decided on 12.05.2023 wherein co-ordinate Bench of this Court has reduced and undergone the sentence of the appellant in only 09 months out of 10 years. Similarly, in this Bench in the case o f Tulsiram vs. State of M.P. passed in CRA No.12105/2023 decided on 01.12.2023 wherein this Bench has passed the sentence of six months out of four years of imprisonment by enhancing the fine from Rs.30,000/- to Rs.1,00,000/-.

Learned Govt. Advocate has opposed the prayer. He supported the judgment and order by submitting that there is clear evidence against the appellants, therefore, he prays for dismissal of the appeals.

I have considered rival contentions of the parties and have perused the record.

So for as the contentions on merits of the case raised in their appeal memo by learned counsels for the appellants is concerned, the learned trial Court has not committed any error in appreciation of evidence available on record. Further, it is found that the Court below considered the evidence available on record and correctly found that the case of the prosecution is well supported by the witnesses and documentary testimony. The procedure was well followed by the prosecution and the witnesses of prosecution have profoundly supported the prosecution case. The Court below has well considered the material available on record, hence, no infirmity is found in the impugned order of conviction passed by the Court below, accordingly, the same is upheld.

In so far as the sentence is concerned, learned counsels for the appellants havr alternatively prayed only on the part of sentence and submitted that since the appellant No.1 Kalu @ Kaluram and appellant No. 2 Sugan have already suffered approximately five months of their jail incarceration and appellant No. 3 Kalu @ Kalusingh has undergone approximately four months only out of his jail incarceration, they may be released only with the undergone sentence by enhancing the fine amount.

In this regard, earlier also the Hon'ble Apex Court as well as this Court has also considered the prayer and reduced the incarceration period of the accused persons to the period already undergone in the cases where the quantity of the contraband is found to be of non-commercial or lesser than the commercial quantity.

On this aspect, the Hon'ble Apex Court in the case of R. Kumaravel vs. Inspector of Police NIB CID (CRA No.1056/2019) decided on 15.07.2019 has observed as under:-

"As per Section 20(b)(ii) (b) of minimum punishment is prescribed for involvement of the quantity lesser than commercial quantity, by greater than the small quantity.

Learned counsel appearing on behalf of the appellant has submitted that the appellant has no criminal antecedents. The appellant has already undergone imprisonment for about 206 days. Considering the facts and circumstances of the case, the sentence of imprisonment of two years imposed upon the appellant is reduced to one year."

Further, on this aspect, the case of Mangilal Vs. Central Narcotics Bureau 2006 Law Suit (MP) 111 is worth referring here wherein the Court has partly allowed the appeal and as the case was related to 2 kg opium i.e. non-commercial quantity, passed a conviction for 3 years RI with fine of Rs. 1000/-instead of 5 years. Similarly, in the case of Kamal Vs. State of M.P. 2012 Law Suit (M.P. 2298 (CRA No.10/2011), Baba @ Akash Sonkar vs. State of M.P. 2020 Law Suit MP 1645 (CRA No.426/2000), Bhagwat Patel Vs. State of M.P. 2022 Law Suit 789 (CRA No.674/2022), Munna @ Munnu Pandit 2022 Law Suit 789 (CRA No.2494/2022) the co-ordinate Bench have reduced to the sentences of the accused persons respectively in non-commercial quantities. In the case of Kamal (supra), the co-ordinate Bench has undergone punishment in approximately two years out of five years for non-commercial quantity, in the case of Baba @ Akash Sonkar (supra), undergone the sentence in one year out of seven years imprisonment, in Bhagwat Patel (supra) the Bench has reduced the sentence to the period already undergone in 8 months and similarly in the case of Munna (supra) in seven months.

In view of the aforesaid, the point of sentence is considered. It seems that the appellant No.1 Kalu @ Kaluram and appellant No. 2 Sugan have already suffered approximately five months of their jail incarceration and appellant No. 3 Kalu @ Kalusingh has undergone approximately four months only out of his jail incarceration. That part. the appellants have suffered the ordeal of criminal case since 2021. There is no minimum sentence prescribed in this regard. On this aspect, the law laid down by the Hon'ble Apex Court, in the case of R. Kumarawal (supra) as well as the settled propositions of law endorsed by Co-ordinate bench of this court, has been perused.

In view of the aforesaid legal proposition regarding non-commercial quantity so also considering the contraband of non-commercial quantity seized f r o m the accused persons and the fact that there is no criminal record/antecedents of the appellants, therefore, this Court finds it expedient to partly allow this appeal to meet the ends of justice by reducing the sentence from four years to six months by enhancing the fine amount from Rs.10,000/-to Rs.50,000/-.

Accordingly, this Criminal Appeal is partly allowed and the sentence under Section 8(C)/21(B) of the NDPS Act awarded to the appellants is hereby reduced to six months R.I. by enhancing the fine from Rs.10,000/- to Rs.50,000/- each. In case of failure to deposit the fine amount, the appellants shall further undergo for three months simple imprisonment.

The appellants are in jail. The bail bond of the appellants shall be discharged after depositing of the enhanced fine amount of Rs.50,000/-. They be set at liberty forthwith if not required in jail in any other case. Fine amount, if already deposited shall be adjusted.

The judgment of learned trial Court regarding disposal of the seized property stands affirmed.

A copy of this order be sent to the concerned trial Court for necessary compliance.